Covert surveillance – is it ok to spy on a ‘sick’ employee?

Mr Ajaj was employed by Metroline as a bus driver between 2004 and 2014, when he was dismissed for gross misconduct, having been found by the Company to have fraudulently claimed sick leave and sick pay by exaggerating his symptoms and thus not attending work.

Mr Ajaj alleged that he had slipped and fallen at work so was unable to attend work. His alleged injury was corroborated by his physiotherapist and an occupational health adviser. Most employers would have accepted that he was injured on the basis of the evidence, but Metroline had a suspicion that Ajaj was greatly exaggerating the symptoms.

It filmed Ajaj walking freely, carrying shopping etc. and invited him to a hearing where he was dismissed summarily for gross misconduct on the grounds of malingering. The first employment tribunal agreed that Ajaj had exaggerated his injury and its effects but went on to decide that Metroline had not shown that he was able to perform his contractual duties, i.e. driving a bus. Metroline, said the tribunal, had failed to assess Ajaj’s capability to his job, and had instead had focused on his conduct in exaggerating his symptoms.

Here lays the first conclusion from this report. Tribunals make odd decisions from time to time, and had we been advising Metroline we would have advised them to have dismissed him in exactly the way they did…and no doubt our client would have then questioned the strength of our advice.

Undaunted Metroline appealed and fortunately the Employment Appeal Tribunal took the altogether more sensible view that he was fairly dismissed. Having concluded that the Claimant had exaggerated the effects of his injury, and that he intended to mislead Metroline for the purposes of obtaining sick pay, they were right to dismiss him for his conduct – his capability to his job was irrelevant.

When tackling malingering, this case enables us to draw some useful conclusions:

– Medical evidence is not necessarily sacrosanct – but make sure that the rest of the evidence is strong and be clear on whether you are dismissing for conduct, or capability. Conduct is safer when dealing with people exaggerating their symptoms.
– Covert filming will be considered by tribunals, but if you do use covert surveillance, restrict filming to public places, never at an employee’s home.

For sick absentees generally it is advisable to:

– hold regular welfare meetings with the employee and keep clear notes of what is said;
– obtain medical consent and liaise with the employee’s GP or occupational health if you use an OHP service;
– consider (with the medical advisors and in consultation with the employee) whether a partial return to work would be beneficial;
– be consistent in your treatment of staff sickness;
– use return to work interviews to ensure that the staff member is well enough, whether any adjustments are necessary and to let them know their absence has been noticed.

Please see our earlier article in which we look at how 4 hours of time solved a 10 year absence issue.

NB:
Conduct – generally a deliberate act, or something within the employee’s control – for conduct issues we tend to use the Disciplinary Procedure.
Capability – generally relates to poor performance etc. that may be beyond the employee’s control e.g. a health issue, or a lack of training etc. Normally we use the Performance Management procedure for dealing with these cases (sometimes referred to as the ‘Capability Procedure’.
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